Ash et al v. OneWest Bank, FSB, No. 2:2009cv00974 - Document 17 (E.D. Cal. 2010)
Court Description: MEMORANDUM AND ORDER granting 13 OneWest's Motion to Dismiss, signed by Judge Frank C. Damrell, Jr., on 1/25/10. Pltfs are GRANTED 15 days from the date of this order to file a second amended complaint. Dft is GRANTED 30 days from the date of service of pltfs' second amended complaint to file a response thereto. (Kastilahn, A)
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Ash et al v. OneWest Bank, FSB Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ROBERT ASH and KATHLEEN ASH, NO. 2:09-cv-00974-FCD/DAD 13 14 15 16 17 Plaintiffs, v. MEMORANDUM AND ORDER ONEWEST BANK, FSB as successor by acquisition of Indymac Federal Bank and LENDER DOE, Defendants. ____________________________/ 18 19 20 ----oo0oo---This matter is before the court on the motion of defendant 21 OneWest Bank, FSB (“OneWest”) to dismiss plaintiffs Robert Ash 22 and Kathleen Ash’s (“plaintiffs”) First Amended Complaint 23 pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6). 24 Plaintiffs oppose the motion. 25 defendant’s motion is GRANTED. For the reasons set forth below,1 26 27 28 1 Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 230(g). 1 Dockets.Justia.com 1 BACKGROUND 2 Plaintiffs brought this action against OneWest for conduct 3 arising out of a loan and subsequent foreclosure activity. 4 (Pls.’ First Am. Complaint (“Compl.”), filed Sept. 11, 2009, ¶ 5 1.) 6 concurrent consumer credit transactions, totaling $1,092,250, 7 with MILA, Inc., dba Mortgage Investment Lending Associates, 8 Inc., (“MILA”). 9 to provide them with the proper copies of the Notice of Right to On or about January 26, 2007,2 plaintiffs entered into two (Id. ¶ 14.) Plaintiffs allege that MILA failed 10 Cancel at the time of signing as required by the Federal Truth in 11 Lending Act (“TILA”), giving plaintiffs up to three years to 12 rescind the loans. (Id. ¶ 43). 13 The loans were initially serviced by IndyMac Bank, FSB. (Id. 14 ¶ 38). 15 receivership by the Office of Thrift Supervision, and a new bank, 16 IndyMac Federal Bank, FSB (“Indymac”), was created under the 17 conservatorship of the Federal Deposit Insurance Corporation 18 (“FDIC”). 19 transferred to OneWest as successor in interest to Indymac. 20 (Compl. ¶ 12.) 21 On July 11, 2008, IndyMac Bank was placed into (OneWest’s ex. 6). At some point, the loans were On December 31, 2008, plaintiffs sent a letter to Indymac 22 and MILA, which they allege was a Qualified Written Request 23 (“QWR”) under the Real Estate Settlement Procedures Act 24 (“RESPA”), 12 U.S.C. § 2601 et seq., and a valid rescission under 25 TILA. Plaintiffs contend that Indymac, and OneWest, as successor 26 2 27 28 While the complaint alleges that the transaction occurred “[o]n or about January 26, 2007,” plaintiffs’ TILA claim is based on their contention that the transaction occurred on January 27, 2007. (See Compl. Ex. C; Ex. B to Compl. Ex. C). 2 1 in interest, engaged in misconduct by failing to respond to this 2 letter and continuing with foreclosure of plaintiffs’ property. 3 (Compl. ¶ 38-39.) 4 In their First Amended Complaint, plaintiffs assert claims 5 for 1) violation of TILA, 15 U.S.C. §§ 1601 et seq., 2) violation 6 of RESPA, 12 U.S.C. §§ 2601 et seq., 3) violation of the 7 Rosenthal Fair Debt Collection Practices Act (“RFDCPA”), 8 California Civil Code §§ 1788 et seq., 4) violation of California 9 Business and Professions Code § 17200, 5) wrongful foreclosure, 10 6) slander of title, and 7) slander of credit. 11 moves to dismiss plaintiffs’ complaint for failure to state 12 cognizable claims. 13 14 (Compl.) OneWest STANDARDS Under Federal Rule of Civil Procedure 8(a), a pleading must 15 contain “a short and plain statement of the claim showing that 16 the pleader is entitled to relief.” 17 S. Ct. 1937, 1949 (2009). 18 court, the complaint must “give the defendant fair notice of what 19 the claim is and the grounds upon which it rests.” 20 v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations 21 omitted). 22 liberal discovery rules and summary judgment motions to define 23 disputed facts and issues and to dispose of unmeritorious 24 claims.” 25 See Ashcroft v. Iqbal, 129 Under notice pleading in federal Bell Atlantic “This simplified notice pleading standard relies on Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). On a motion to dismiss, the factual allegations of the 26 complaint must be accepted as true. 27 322 (1972). 28 every reasonable inference to be drawn from the “well-pleaded” Cruz v. Beto, 405 U.S. 319, The court is bound to give plaintiff the benefit of 3 1 allegations of the complaint. 2 Schermerhorn, 373 U.S. 746, 753 n.6 (1963). 3 allege “‘specific facts’ beyond those necessary to state his 4 claim and the grounds showing entitlement to relief.” 5 550 U.S. at 570. 6 plaintiff pleads factual content that allows the court to draw 7 the reasonable inference that the defendant is liable for the 8 misconduct alleged.” 9 Retail Clerks Int’l Ass’n v. A plaintiff need not Twombley, “A claim has facial plausibility when the Iqbal, 129 S. Ct. at 1949. Nevertheless, the court “need not assume the truth of legal 10 conclusions cast in the form of factual allegations.” 11 States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th 12 Cir. 1986). 13 allegations, “it demands more than an unadorned, the defendant- 14 unlawfully-harmed-me accusation.” 15 pleading is insufficient if it offers mere “labels and 16 conclusions” or “a formulaic recitation of the elements of a 17 cause of action.” 18 1950 (“Threadbare recitals of the elements of a cause of action, 19 supported by mere conclusory statements, do not suffice.”). 20 Moreover, it is inappropriate to assume that the plaintiff “can 21 prove facts which it has not alleged or that the defendants have 22 violated the . . . laws in ways that have not been alleged.” 23 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council 24 of Carpenters, 459 U.S. 519, 526 (1983). 25 United While Rule 8(a) does not require detailed factual Iqbal, 129 S. Ct. at 1949. A Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at Ultimately, the court may not dismiss a complaint in which 26 the plaintiff has alleged “enough facts to state a claim to 27 relief that is plausible on its face.” 28 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 4 Iqbal, 129 S. Ct. at 1949 1 (2007)). 2 her] claims across the line from conceivable to plausible,” is 3 the complaint properly dismissed. 4 plausibility requirement is not akin to a probability 5 requirement, it demands more than “a sheer possibility that a 6 defendant has acted unlawfully.” 7 inquiry is “a context-specific task that requires the reviewing 8 court to draw on its judicial experience and common sense.” 9 at 1950. Only where a plaintiff has failed to “nudge [his or Id. at 1952. Id. at 1949. While the This plausibility Id. 10 In ruling upon a motion to dismiss, the court may consider 11 only the complaint, any exhibits thereto, and matters which may 12 be judicially noticed pursuant to Federal Rule of Evidence 201. 13 See Mir v. Little Co. Of Mary Hospital, 844 F.2d 646, 649 (9th 14 Cir. 1988); Isuzu Motors Ltd. V. Consumers Union of United 15 States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). 16 17 18 ANALYSIS A. OneWest’s Exhibits In ruling upon a motion to dismiss, the court may consider 19 matters which may be judicially noticed pursuant to Federal Rule 20 of Evidence 201. 21 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers 22 Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. 23 Cal. 1998). 24 an adjudicative fact “not subject to reasonable dispute” because 25 the fact is either “(1) generally known within the territorial 26 jurisdiction of the trial court or (2) capable of accurate and 27 ready determination by resort to sources whose accuracy cannot 28 reasonably be questioned.” See Mir v. Little Co. of Mary Hospital, 844 Rule 201 permits a court to take judicial notice of Fed. R. Evid. 201(b). 5 The court can 1 take judicial notice of matters of public record, such as 2 pleadings in another action and records and reports of 3 administrative bodies. 4 1190, 1198 (9th Cir. 1988). 5 See Emrich v. Touche Ross & Co., 846 F.2d “Even if a document is not attached to a complaint, it may 6 be incorporated by reference into a complaint if the plaintiff 7 refers extensively to the document or the document forms the 8 basis of the plaintiff’s claim.” 9 F.3d 903, 908 (9th Cir. 2003). United States v. Ritchie, 342 “The defendant may offer such a 10 document, and the district court may treat such a document as 11 part of the complaint, and thus may assume that its contents are 12 true for purposes of a motion to dismiss under Rule 12(b)(6).” 13 Id. 14 plaintiffs “from surviving a Rule 12(b)(6) motion by deliberately 15 omitting references to documents upon which their claims are 16 based.” The policy concern underlying the rule is to prevent Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998). 17 Plaintiffs’ complaint alleges several causes of action that 18 are premised on (1) defendant OneWest’s predecessor’s failure to 19 provide the disclosures and number of copies of the Notice of 20 Right to Cancel; and (2) plaintiffs’ ability to tender payment. 21 (Compl. ¶ 43, 48.) 22 Deeds of Trust recorded with the El Dorado County Recorder as 23 well as a copy of the Voluntary Petition for Chapter 13 24 bankruptcy filed by plaintiffs. 25 requests. 26 of the relevant causes of action and the bankruptcy filings are 27 public documents filed under penalty of perjury, the court 28 considers them for the purpose of defendant’s motion to dismiss. Defendants request Judicial Notice of the Plaintiffs do not oppose the Accordingly, because the loan documents form the basis 6 1 2 B. TILA Plaintiffs’ first claim for relief alleges that defendant 3 OneWest violated TILA by failing to provide the required 4 disclosures to plaintiffs at the time of closing. 5 OneWest moves to dismiss the count on grounds that the claim for 6 rescission must fail because OneWest is only a loan “servicer” 7 and not a “creditor” as required under TILA and that 8 “[p]laintiffs have not and cannot allege they are able to repay 9 [(“tender”)] the loan proceeds.” (Def.’s Mot. to Dismiss (“MTD”), 10 (Compl. ¶ 43.) filed Oct. 9, 2009, 6:26-27.) 11 1. 12 The purpose of TILA is to “assure a meaningful disclosure of OneWest is not a “creditor” 13 credit terms so that the consumer will be able to compare more 14 readily the various credit terms available to him and avoid the 15 uninformed use of credit, and to protect the consumer against 16 inaccurate and unfair credit billing and credit card practices.” 17 15 U.S.C. § 1601(a). 18 Federal Reserve System, 12 C.F.R. §§ 226.1-.29 (“Reg Z”), contain 19 detailed disclosure requirements for consumer loans. 20 Platte Valley Fed. Sav. & Loan Ass’n., 791 F.2d 699, 703-04 (9th 21 Cir. 1986). 22 TILA and its regulations, issued by the Civil liability under TILA applies to creditors. Semar v. See 15 23 U.S.C. § 1640(a) (2009) (establishing civil liability for “any 24 creditor” for failure to comply with any requirement of “[15 25 U.S.C. §§ 1631 et seq.], including any requirement under section 26 125 [15 U .S.C. § 1635]”). 27 any TILA action, including a rescission claim, which may be 28 brought against a creditor may also be brought against the Title 15 U.S.C. § 1641 provides that 7 1 assignee of a creditor. 2 3 4 5 6 7 8 TILA defines creditor as referring only to a person who both: (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness or, if there is no such evidence of indebtedness, by agreement. . . . 9 10 15 U.S.C. § 1602(f). 11 TILA also contemplates that a court can levy damages 12 against assignees if the disclosure violations made by the 13 original lender are “apparent on the face of the disclosure 14 statement.” 15 U.S.C. § 1641(a). 15 servicers “shall not be treated as an assignee of [a consumer] 16 obligation for purposes of this section unless the servicer is or 17 was the owner of the obligation.” 18 See also Marks v. Ocwen Loan Servicing, 2008 U.S. Dist. LEXIS 19 12175, at *4-5, 2008 WL 344210 (N.D. Cal. Feb. 6, 2008) 20 (“Although TILA provides that assignees of a loan may be liable 21 for TILA violations, loan servicers are not liable under TILA as 22 assignees unless the loan servicer owned the loan obligation at 23 some point.”) 24 However, under § 1641, loan 15 U.S.C. § 1641(f) (2009). Plaintiffs concede that they believe that OneWest “was 25 merely a servicing agent” and that “a servicing agent does not 26 have liability under [TILA].” (Compl. ¶¶ 37, 40.) 27 plaintiffs contend that OneWest should be liable under principles 28 of agency because OneWest is “intentionally withholding the 8 However, 1 identity of their principal thereby rendering themselves liable 2 for their acts.” 3 no authority to support their position that common law rules of 4 agency apply to TILA claims. 5 section in the Act which specifically states that servicers are 6 not liable under TILA. 7 a loan servicer, and not a creditor, plaintiffs have failed to 8 state a claim under TILA against OneWest. 9 10 2. (Id. ¶ 40.) However, Plaintiffs have provided To the contrary, Congress placed a 15 U.S.C. § 1641(f). Because OneWest is Inability to Tender The Ninth Circuit has held that rescission under TILA 11 “should be conditioned on repayment of the amounts advanced by 12 the lender.” 13 Cir. 2003) (emphasis in original). 14 circuit have dismissed rescission claims under TILA at the 15 pleading stage based upon the plaintiff’s failure to allege an 16 ability to tender loan proceeds. 17 Mortgage, 2009 U.S. Dist. LEXIS 7448, at *15 (E.D. Cal. Jan. 27, 18 2009) (stating that “rescission is an empty remedy without [the 19 borrower’s] ability to pay back what she has received”); Ibarra 20 v. Plaza Home Mortgage, 2009 U.S. Dist. LEXIS 80581, at *22 (S.D. 21 Cal. Sept. 4, 2009); Carnero v. Weaver, 2009 U.S. Dist. LEXIS 22 62665, at *8 (N.D. Cal. July 20, 2009); Pesayco v. World Sav., 23 Inc., 2009 U.S. Dist. LEXIS 73299, at *4 (C.D. Cal. July 29, 24 2009); Ing Bank v. Korn, 2009 U.S. Dist. LEXIS 73329, at *7 (W.D. 25 Wash. May 22, 2009). 26 Yamamoto v. Bank of N.Y., 329 F. 3d 1167, 1170 (9th District courts in this See, e.g., Garza v. Am. Home In this case, plaintiffs allege that they were prepared to 27 offer tender at some point, but were denied rescission and 28 damaged under 15 U.S.C. § 1640 by defendant’s failure to engage 9 1 in the process. 2 opposition, plaintiffs also assert that they “are prepared to 3 tender once ONEWEST removes all of the impediments and harms they 4 have put in the way.” 5 filed Nov. 24, 2009, 18:5-7) 6 (Compl. ¶ 48 (emphasis added).) In their (Pl.’s Opp’n Mot. Dismiss (“Pl.’s Opp’n”), However, neither plaintiffs’ reference to a past ability to 7 tender in their complaint nor their conclusory statement in their 8 opposition allows the court to make a reasonable inference that 9 plaintiffs would be able to offer tender or should be excused 10 from doing so prior to rescission. 11 conclusory assertions are not supported by other portions of the 12 complaint or documents which the court takes judicial notice of. 13 As of February 20, 2009, plaintiffs were in default on one of the 14 loans in the amount of $17,687.07. 15 filed a voluntary petition for Chapter 13 bankruptcy in which 16 they estimated their assets as between $500,001.00 and $1 million 17 and their liabilities as between $1 million and $10 million. 18 (OneWest’s Ex. 1, 4.) 19 set forth in their letter to Indymac in December 2008, the 20 present fair market value of the property was $700,000. 21 Ex. C.) 22 required to tender more than $300,000 in addition to this alleged 23 value of the property.3 24 they could refinance the property in order to tender payment is 25 not supported by their factual allegations. Further, plaintiffs’ On June 12, 2009, plaintiffs Moreover, by plaintiffs’ own assessment (Compl. In order to rescind the loans, plaintiffs would be Accordingly, plaintiffs’ assertion that 26 27 28 3 Plaintiffs assert that the Notice of Default and bankruptcy filing should not be considered because they were the result of defendant’s failure to follow the rescission procedure. 10 1 Accordingly, OneWest’s motion to dismiss plaintiffs’ claim 2 under TILA is GRANTED. 3 B. 4 RESPA Violation Plaintiffs’ second claim for relief alleges that OneWest 5 violated 12 U.S.C. § 2605 by failing to provide a written 6 explanation in response to plaintiffs’ alleged Qualified Written 7 Request (“QWR”), which was sent to Indymac and dated December 31, 8 2008. (Compl. ¶ 81-84.) 9 the basis that the QWR was sent not to OneWest, but to Indymac, OneWest moves to dismiss this claim on 10 who was operating under the FDIC as conservator. 11 The defendant also contends that plaintiffs have failed to plead 12 actual damages as required by RESPA. (MTD, 10:1-5.) (Id. 9-11.) 13 1. 14 Section 2605 of RESPA requires a loan servicer to provide Indymac was not a “Servicer” 15 disclosures relating to the assignment, sale, or transfer of loan 16 servicing to a potential or actual borrower: (1) at the time of 17 the loan application, and (2) at the time of transfer. 18 § 2605. 19 borrower’s inquiry or “qualified written request.” 20 2605(e). 21 12 U.S.C. The loan servicer also has a duty to respond to a 12 U.S.C. § A qualified written request is a written correspondence that 22 enables the servicer to identify the name and account of the 23 borrower. 24 statement describing why the borrower believes that the account 25 is in error or provides sufficient detail to the servicer 26 regarding other information sought by the borrower. 27 loan servicer is required to respond by making appropriate 28 corrections to the borrower’s account, if necessary and, after 12 U.S.C. § 2605(e)(1). 11 It also either includes a Id. The 1 conducting an investigation, by providing the borrower with a 2 written clarification or explanation. 3 The statute of limitation to bring an action for a Section 2605 4 violation is three years. 5 12 U.S.C. § 2605(e)(2). 12 U.S.C. § 2614. Section 2605 defines a “servicer” as “the person responsible 6 for servicing the loan.” 7 section 2605(i)(2)(A) provides that the term “servicer” does not 8 include “the Federal Deposit Insurance Corporation . . . as 9 receiver or conservator of an insured depository institution.” 12 U.S.C. § 2605(i)(2). However, 10 12 U.S.C. § 2605(i)(2)(A); Ibarra v. Plaza Home Mortgage, 2009 WL 11 2901637 *4 (S.D. Cal. 2009) (granting FDIC motion for judgment on 12 the pleadings, as receiver for Indymac, with respect to RESPA 13 claim based on alleged qualified written request). 14 Plaintiffs admit in their complaint that at the time they 15 sent the QWR, Indymac “was under receivership”4 by the FDIC and 16 “under the management and control of the FDIC.” (Compl. ¶ 38.) 17 The court also takes judicial notice of an order from the 18 Director of Thrift Supervision, dated July 11, 2009, in which 19 Indymac was placed under conservatorship of the FDIC. (OneWest’s 20 Ex. 6.) 21 as conservator from its definition of servicer, Indymac was under 22 no obligation to respond to the alleged QWR and could not have 23 transferred this responsibility to OneWest. Because RESPA specifically excludes the FDIC in its role See Fullmer v. 24 25 26 27 28 4 While the plaintiffs use the term “receivership” Indymac Federal Bank, FSB was under a “conservatorship.” On July 11, 2008 the Director of the Office of Thrift Supervision determined that grounds existed for appointment of the FDIC as receiver for IndyMac Bank, FSB. (OneWest’s Ex. 6.) In the same order, the Director created IndyMac Federal Bank, FSB which would take over the assets and liabilities of IndyMac Bank and appointed the FDIC as conservator of the new bank. (Id.) 12 1 JPMorgan Chase Bank, N.A., 2:09-cv-1037, 2010 WL 95206, at * 5 2 (E.D. Cal. Jan. 6, 2010) (rejecting the “plaintiff’s efforts to 3 hold [the] defendants vicariously liable for the QWR sent to 4 IndyMac Federal Bank, FSB”); Ibarra, 2009 WL 2901637, at *4. 5 2. 6 A claim for a RESPA violation cannot survive a motion to Damages 7 dismiss when the plaintiff does not plead facts showing how the 8 plaintiff suffered actual harm due to the defendant’s failure to 9 respond to a qualified written response. See Benham v. Aurora 10 Loan Servs., 2009 U.S. Dist. LEXIS 91287, at *10-11 (N.D. Cal. 11 Oct. 1, 2009); Singh v. Wash. Mut. Bank, 2009 U.S. Dist. LEXIS 12 73315, at *16 (N.D. Cal. Aug. 19, 2009). 13 this requirement liberally, the plaintiff must at least allege 14 what or how the plaintiff suffered the pecuniary loss. 15 Yulaeva v. Greenpoint Mortgage Funding, Inc., 2009 U.S. Dist. 16 LEXIS 79094, at *44 (E.D. Cal. Sept. 3, 2009) (holding that the 17 plaintiff’s claim was sufficient to survive a motion to dismiss 18 because the plaintiff alleged that she was made to pay a referral 19 fee that was prohibited by RESPA); Hutchinson v. Del. Sav. Bank 20 FSB, 410 F.Supp.2d 374, 383 (D.N.J. 2006) (holding that the 21 plaintiffs adequately pled actual damages when they alleged that 22 they suffered “negative credit ratings on their credit reports 23 [and] the inability to obtain and borrow another mortgage loan 24 and other financing”). 25 While courts interpret See Here, plaintiffs’ vague claim that they suffered harm 26 because they were unable to name the real party in interest to 27 this suit is insufficient to demonstrate that they suffered 28 actual damages as a result of defendant’s failure to respond to 13 1 the QWR. (Compl. ¶ 89.) 2 sufficiently pled facts showing a cognizable RESPA violation. 3 Therefore, plaintiffs have not Accordingly, OneWest’s motion to dismiss plaintiffs’ second 4 claim for relief for violations of RESPA is GRANTED. 5 C. 6 RFDCPA Violation Plaintiffs’ third claim for relief alleges violation of 7 California’s Rosenthal Fair Debt Collection Practices Act 8 (“RFDCPA”). 9 allegation that lacks the factual allegations necessary to 10 OneWest moves to dismiss this claim as a conclusory survive a motion to dismiss. (MTD, 11:6-7, 22-28.) 11 The RFDCPA precludes a debt collector from collecting or 12 attempting to collect from a debtor on a consumer debt in a 13 threatening or harassing manner. 14 seq. (West 2010). 15 obscenity, misleading or false communications, and overreaching. 16 Cal. Civ. Code § 1788.10-.12; 1788.14-.16. 17 See Cal. Civ. Code § 1788, et Specifically, the RFDCPA prohibits threats, Plaintiffs allege that OneWest repeatedly contacted them in 18 an attempt to collect the debt through “a high volume of phone 19 calls and written correspondence.” 20 federal rules contemplate a short and plain statement of the 21 factual basis for a plaintiff’s claims, the allegations must be 22 sufficiently pled (1) to allow the court to determine whether the 23 conduct violates the statute, and (2) to enable defendants to 24 respond. 25 1950. 26 does not by itself constitute a violation of the RFDCPA. 27 Fullmer, 2010 WL 95206, at *7. 28 ///// (Compl. ¶ 94.) While the See Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at A “high volume of phone calls and written correspondence” 14 See 1 Accordingly, OneWest’s motion to dismiss plaintiffs’ third 2 claim for relief for violations of RFDCPA is GRANTED. 3 D. 4 Violation of California Business & Professions Code § 17200 Plaintiffs’ fourth claim asserts that OneWest violated 5 Section 17200 of the California Business & Professions Code by 6 engaging in unlawful, unfair, and fraudulent business practices. 7 (Compl. ¶ 102.) 8 alleged violation of TILA, RESPA, and RFDCPA. 9 Plaintiffs predicate this claim on defendant’s (Compl. ¶ 107.) The Unfair Competition Law (“UCL”), California Business and 10 Professions Code §§ 17200, et seq., forbids acts of unfair 11 competition, which includes “any unlawful, unfair or fraudulent 12 business act or practice.” 13 UCL is broad in scope, embracing anything that can properly be 14 called a business practice and that at the same time is forbidden 15 by law.” 16 App. 4th 950, 959 (2008) (internal citations omitted). 17 Cal. Bus. & Prof. Code § 17200. “The People ex rel. Gallegos v. Pacific Lumber Co., 158 Cal. Because plaintiffs’ UCL claim against OneWest is predicated 18 upon defendant’s alleged violations of TILA, RESPA, and RFDCPA, 19 for the reasons set forth above, plaintiffs’ allegations 20 regarding their UCL claim similarly fails to state a basis for 21 relief. 22 Accordingly, OneWest’s motion to dismiss the fourth claim in 23 the complaint for violation of UCL is GRANTED. 24 E. 25 Wrongful Foreclosure Plaintiffs’ fifth claim for relief alleges a wrongful 26 foreclosure claim against OneWest. 27 contends that plaintiffs’ wrongful foreclosure claim fails 28 because plaintiff has not alleged ability to tender the borrowed 15 (Compl. 113-15.) Defendant 1 2 funds to the lender. (MTD, 15:7-9.) “A valid and viable tender of payment of the indebtedness 3 owing is essential to an action to cancel a voidable sale under a 4 deed of trust.” 5 App. 3d 112, 117 (Cal. App. 2d Dist. 1971). 6 California district courts utilize the Karlsen rationale in 7 examining wrongful foreclosure claims. 8 Group, 2009 U.S. Dist. LEXIS 68373 (E.D. Cal. Aug. 3, 2009) 9 (“Plaintiff offers nothing to indicate that she is able to tender Karlsen v. American Sav. & Loan Assn., 15 Cal. The majority of Anaya v. Advisors Lending 10 her debt to warrant disruption of non-judicial foreclosure”); 11 Alicea v. GE Money Bank, 2009 U.S. Dist. LEXIS 60813 (N.D. Cal. 12 July 16, 2009) (“When a debtor is in default of a home mortgage 13 loan, and a foreclosure is either pending or has taken place, the 14 debtor must allege a credible tender of the amount of the secured 15 debt to maintain any cause of action for foreclosure.”); Montoya 16 v. Countrywide Bank, 2009 U.S. Dist. LEXIS 53920 (N.D. Cal. June 17 25, 2009) (“Under California law, the “tender rule” requires that 18 as a precondition to challenging a foreclosure sale, or any cause 19 of action implicitly integrated to the sale, the borrower must 20 make a valid and viable tender of payment of the secured debt”). 21 The application of the “tender rule” prevents “a court from 22 uselessly setting aside a foreclosure sale on a technical ground 23 when the party making the challenge has not established his 24 ability to purchase the property.” 25 Loans, 1999 U.S. Dist. LEXIS 14550 (N.D. Cal. Sept. 15, 1999). 26 As set forth above in the court’s analysis of plaintiffs’ Williams v. Countrywide Home 27 TILA claim, plaintiffs have not alleged any facts supporting 28 their ability to tender payment. 16 Accordingly, OneWest’s motion 1 to dismiss plaintiffs’ fifth claim for relief for wrongful 2 foreclosure is GRANTED. 3 F. 4 Slander of Title and Slander of Credit5 Plaintiffs’ sixth and seventh claims for relief are based on 5 claims for slander of title and slander of credit. (Compl. ¶¶ 6 116-19.) 7 recorded various documents including a Notice of Default which 8 has impaired the Plaintiffs [sic] title which constitutes slander 9 of title.” Plaintiffs allege that defendant “has caused to be (Compl. 117.) The complaint also alleges that “the 10 actions and inactions of the Defendants have impaired their 11 credit history causing them to lose the ability to have good 12 credit.” (Compl. 119.) 13 Plaintiffs’ allegations that this conduct “constitutes 14 slander of title” or “slander of credit” are conclusory 15 assertions barren of any factual support. 16 rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 17 Plaintiffs have failed to allege any facts or provide any 18 information regarding as to how the Notice of Default amounts to 19 slander or how plaintiffs’ credit history has been affected by 20 the actions of OneWest. 21 See United States ex Accordingly, OneWest’s motion to dismiss the plaintiffs’ 22 sixth and seventh claims for relief for slander of title and 23 slander of credit are GRANTED. 24 ///// 25 ///// 26 27 28 5 To the extent that these claims are based on the alleged violations of TILA, RESPA, RFDCPA, and wrongful foreclosure, for the reasons set forth above, the allegations in the complaint are insufficient to state a claim. 17 1 2 CONCLUSION For the foregoing reasons, OneWest’s motion to dismiss is 3 GRANTED. 4 of this order to file a second amended complaint in accordance 5 with this order. 6 date of service of plaintiffs’ second amended complaint to file a 7 response thereto. 8 9 Plaintiffs are granted fifteen (15) days from the date Defendant is granted thirty (30) days from the IT IS SO ORDERED. DATED: January 25, 2010. 10 11 FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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